Thursday, April 14, 2016

Barack Obama recently said that one of his biggest
mistakes as President was not planning adequately for the political aftermath
in Libya once the ouster of strongman Gaddafi was accomplished. I think there
is a lesson here as well for family law professionals and parents involved in
litigation.

Some liken family law litigation to a military
campaign: the lawyers and clients develop their respective strategies, plan
tactics to put the strategy into action, gather supporting evidence and
witnesses, consider the other party’s strengths and weaknesses, and time their
tactical moves carefully in anticipation of battling in the courtroom. All this planning and activity is based upon
one principle premise: the “enemy” is the
other parent, one’s adversary. In too
many instances, however, planning for trial does not include planning for its
aftermath—and once the court has ruled and is no longer involved, the landscape
is usually quite different.

During the period leading up to trial, parents are
subject to outside constraints. The court makes preliminary rulings defining what
parents can and cannot do and court officers, such as evaluators and lawyers, are
always looking over parents’ shoulders, judging their behavior. As one father remarked: “We’ve outsourced
leadership of our family to others.” In
this context, parents are well-advised to do right. They may not want to do right, they may want
desperately to act upon their baser instincts – but it is not in their interest
to do so; there is too much to lose.

But after making its ruling, the court closes the
case and the legal and mental health professionals step out. As a consequence, the external constraints,
for the most part, are removed. Although
most parents feel relieved that they no longer have outsiders looking over
their shoulders, they may be taken aback by the realization that the other
parent is also relieved of these constraints.
And once the professionals are no longer involved, both lose ready
access to good counsel and guidance. Parents then worry: “What now will constrain
bad behavior?”

In the aftermath, whether they’ve “won” or “lost,” I
find that the main focus of these parents often shifts from litigating their
interests to trying to manage the attitudes of the other parent: “They only did
the right thing before because the court forced them to. I can’t trust that, they need an attitude
adjustment.” In the absence of external
constraints, each becomes over-invested in transforming the other’s mindset to what
they view as appropriate and acceptable.

These efforts, I’ve observed, have something in
common: In almost all instances, they
failed.

Why? Well,
the “winners” in litigation often feel vindicated: “The court said I was
right—so why should I do anything different?”
And the “losers?” For reasons of
saving face or not thinking they have anything more to lose or simply because
they still feel correct in their beliefs, they feel little incentive to alter
their mindset. Indeed, many feel even more entrenched in a position of being
victimized, first by their ex, now by the legal system. It is difficult for these parents to accept
that the transformations that they want to see in one another are not under
their respective control. Those changes
have to come from within, not from without.

So how will these parents maintain some semblance of
normalcy and order for themselves and the children in the aftermath? The best solution is a cooperative
working-relationship between equal parents.
But that gets us back to the problems solved and then created by
litigation – the court settles the disputes in question but oftentimes the
winner walks away with relatively more power (real or perceived), the loser
with less. It is still possible to have a
cooperative working relationship when parental decision-making and
parenting-time are not equally distributed, but this is difficult, sometimes
impossible, to achieve when feelings are still litigation raw. Sadly, some parents just aren’t up it – even when
time has passed.

The courts and family law practitioners have
recognized this problem. Working with
state legislatures, they created roles (e.g., parent facilitators, parent
coordinators, decision makers, special masters) for professionals to provide
oversight and guidance to families struggling with the litigation
aftermath. The goal of such
intervention is modest: Maintain reasonable order and good behavior rather than
transformation of attitudes and mindset. Evidence exists that such interventions can reduce
the frequency of additional litigation (see Henry et al., 2009) but, as
expected, do not impact parents’ negative perceptions of their co-parenting
relationship (see APA Parenting coordination project, 2010). In other words,
judges may be pleased that these families appear less frequently in their court
rooms, but the parents are not any more pleased or trusting of one another than
before.

When the court recognizes that one or both parents
are likely to engage in further bad behavior, it may also write orders with
clear behavioral expectations – and equally clear consequences for failing to
comply. These types of orders can be effective, although they require one of
the parties to bring transgressions to the court’s attention before the
consequences can be applied.

I think it is important to note that these programs
are a reaction to a problem, rather
than an effort to prevent it at the
outset. I said in the beginning of this post that
planning for the aftermath of litigation was often missing during the run up to
trial. This is where I perceive that family law practitioners, particularly
family lawyers, could be helpful. By
insisting that their clients plan for the aftermath, to consider what would be
“good” and “bad” behavior regardless of the outcome, and to develop a picture
in their mind’s eye of how they want to act and to be perceived by their
children, lawyers can help their clients first picture, then plan, then act
accordingly. We coach children what it
means to be a good winner and how not
to be a sore loser before their first
competition. And with reminders and
practices, such coaching usually works.

About this Blog

Dr. Mark Otis has been a practicing psychologist in Dallas since 1979. He writes and produces multimedia educational and training material for divorce professionals and divorcing parents who want to improve their co-parenting, negotiation, mediation, and conflict de-escalation skills. Dr. Otis recently moved to Denver, Colorado where he continues his consultation practice.

Welcome Back, Pluto

If you have confronted many instances of parent-child alienation, you have probably encountered children who insist upon calling their rejected parent by their first name (or worse). Perhaps in most instances, the alienated children’s intent is to show contempt towards the rejected parent: “You don’t deserve the name Mom or Dad, you’ve lost the right to that respect.” Welcome Back, Pluto presents this issue to children and adults in an even-handed manner designed to replace contempt with compassion and hurt with understanding.

A Psychedelic Pluto

Pluto lit up for the holidays

Contact Mark Otis

email: mark@markrotis.com

Check out this new online divorce service

If you are a married parent living in Texas and are considering divorce, check out a new online service, Negotiated Divorce, for couples who want to conduct their own divorce. Negotiated Divorce was designed by legal, mental health and financial divorce professionals with over 90 years combined experience. Designed to be more than another document service, the site has extensive educational material and easy to follow instructions to help parents make informed agreements about parenting plans, financial issues, and property settlements. Based on a core value that "negotiated solutions are the best solutions," Negotiated Divorceis the only online service that offers extensive multimedia educational material focused exclusively on helping couples learn the skills and tools of negotiating that are so necessary to good agreements. . Check it out.

One of the hallmarks of divorce conflict is insufficient civility. Everyday, angry ex’ send contentious, nasty emails and texts that they...

Articles and websites of interest

It takes two to have a war, but perhaps only one to make peace. Read an article by three prominent Israelis with a unique perspective on the Israeli-Palestinian debate about how to achieve peace...Peace Without Partners...

If you are family lawyer wanting to improve your analysis of mental health professionals's evaluations of your clients (or if you are a mental health professional preparing to testify about an evaluation you conducted), be sure to read the two best books on the market:Confronting Mental Health Evidence and How to Examine Mental Health Experts. Written by John A. Zervopoulos, Ph.D., J.D., these books will organize your analysis, guide your questions, and improve your practice.

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Video links

Bargaining is often an essential component to how satisfied the parties feel about a negotiation. Making concessions back and forth reassures each party that the other side is willing to consider their concerns. But when an agreement is reached without either side making significant concessions, both parties may walk away dissatisfied, wondering if they could have achieved more.For a light-hearted look at this dynamic, watch this classic scene from Seinfeld where Kramer and Jerry’s father negotiate the sale of some raincoats.

Monty Python also took a look at bargaining -- but puts a reverse spin on it in this hilarious scene set in a middle east bazaar.

It's a negotiation! Or is it? Watch this lawyer, played by George Clooney, begin settlement discussionsin his client's divorce.

Interests are at the core of every negotiation. Can you identify the landlord's interests in this scene from The Tenant?

One can't succeed without risking failure. Check out these inspirational videos about infamous failures such as Abraham Lincoln and Michael Jordan if you feel that failure is weighing you down.

I've used this clip from the Wedding Crashers for years to illustrate the importance of the relationship between the parties to succeed at a negotiation. Don't be fooled by their sarcasism and cynicism, these mediators know what they're doing to help the divorcing parties reach an agreement.

Need to laugh?

It's important for all of us to be able to laugh at ourselves, including mental health professionals. Here's aclassic sketch starring Bob Newhart that pokes good fun at therapy.

Mindset

Do you know the difference between a fixed and a growth mindset? It's an important concept with which all parents should be familiar. Check out this informative and inspiring TedTalk by Eduardo Briceno.

Brandon Todd illustrates the importance of persistence to a growth mindset. Inspiring short documentary of how a man challenged himself to do what others said was not possible.